VIGNETTE 1, 2, 3, 4
Judicial Notice Chapter 5 (pg. 9)
Rule 201: Judicial Notice of Adjudicative Facts
Definition: A fact that is generally known in the jurisdiction where the case is being tried, or that is ready of certain verification. Judicially noticed facts do not require proof by the presentation of evidence.
This is the exception to the general rule as to who does what on a courtroom. Usually judges are gatekeepers as to what comes in and out of a courtroom and usually only when someone objects. Here the judge becomes the fact finder.
Court can make its own motion (doesn’t have to wait for the lawyers)
This can take place at any time during the trial.
Civil case: must accept fact; Criminal case: may accept fact
Two types of facts:
Adjudicative: Part and parcel matter of the subject matter of the case. Fact that jury needs to decide case.
Legislative facts: Facts courts use when making laws, rather than interpreting laws (when a decision is being made on policy grounds).
(i.e., Brown v. Bd. of Ed.: Separate but equal)
Judicial Notice can be taken at any time in the proceeding
Court must take judicial notice if the motion is made and proven, but the objector to the motion has the right to be heard.
Readily known fact by a reasonable person in the in the jurisdiction where the case is being tried. It doesn’t matter where the event occurred.
Example: Barber v. Lee
Competence to Testify Chapter 3 (pg. 5)
Rule 601: General rule of competency
Rule 602: Lack of personal knowledge
Rule 603: Oath or affirmation
Rule 604: Interpreters
Rule 605: Competency of judge as witness
Rule 606: Competency of juror as witness
Definition: A person is competent to be a witness if he possesses the ability to 1) perceive the events about which he will testify 2) Remember the events about which he will testify 3) communicate understandably to the trier of fact and 4) appreciate the obligation to tell the truth which is imposed by the oath or affirmation
There is a presumption of competence absent objection
The state rule as to competency is followed above the federal rule
Witness is called to the stand
Before oath, objection as to competence must be made
After oath, presumption of competence is made
The jury is sometimes excused during competency hearing because they might hear evidence that might otherwise not be admissible
Judge will first question the witness, then proponent, then opponent
Judge makes ruling
Sometimes a teacher or parent, or doctor, etc. can give testimony as to the competency of another witness
Test for competency:
1. Can they distinguish between what is true and not true and do they understand what will happen if they don’t tell the truth (do they understand the oath of affirmation?)
2. Do they have the ability to recall and relate? (are they able to understand questions and give intelligent answers?)
Issues of competency at common law have become rules of impeachment and privilege
A lawyer cannot testify except for perfunctory matters if acting as counsel
Offers of Proof Chapter 2 (pg. 3)
Rule 103: Rulings on Evidence
If an objection is sustained then proffering counsel can make an offer of proof. An offer of proof has many forms:
Argument by lawyer
Questions and answers away from the jury (voir dire hearing on competence of evidence)
Written offer of proof (what it will be and what it will accomplish.
Definition: an offer of proof is a statement for the record of the substance of a witnesses testimony which would have been given but for a ruling of trial judge to exclude such testimony
Contemporaneous Objection Rule
Objections Chapter 1 (pg. 1)
Rule 103: Rulings on evidence
Preserving matters for appeal: If you decide to make a general objection and it is overruled, if there is any admissible purpose for the evidence, then the judge won’t be overturned (same if the evidence is excluded)
Definition: In order to challenge the admission of evidence, the opponent of the offer of the evidence must bring the challenge to the attention of the court by means of an objection. Generally, failure to object waives appellate consideration of any error in the admission of evidence at trial.
Plain Error Rule: General objections are only useful when the grounds for objection are obvious.
Rule 103 was amended: In limine motions (pre-trial motion) which are definitive do not need to be re-litigated at trial (however, judge can be persuaded to change his/her mind so you can always ask a judge to reconsider)
Firsthand Knowledge Chapter 4 (pg. 8)
Rule 602: Lack of personal knowledge
Definition: The witness may testify only as to mattes about which he has personal or firsthand knowledge. In other words, a witness may testify only as to matters which the witness has perceived through one of the senses.
Forms of Questions
VIGNETTES: 2, 3, 4, Sonenshein #1
Contemporaneous Objection Rule: in order for an objection to be timely, you must make it at the first opportunity to do so- if you object to the question, you cannot wait until the answer to object
Only object to these if they hurt you, otherwise you make your opponent a better lawyer.
Rule 614: Sometimes a judge can ask a question, however they run the risk of being overturned. A juror can ask a question as well.
Narratives Chapter 15 (pg. 26)
Rule 611(a): Mode and Order of Interrogation and Presentation
Definition: a question may be objected as calling for a narrative if it is unfocused as to particular information that is sought and calls for a mere recitation of what a witness knows without the benefit of specific questions. Such question forms make it virtually impossible for opposing counsel to interpose objections concerning potential testimony before the jury has already heard the offending testimony.
There is no specific rule about narratives, but they aren’t not the way examinations are conducted, although they are the way people talk
It is more likely that narratives will include more testimony, including inadmissible evidence
If someone gives a narrative res
d, introduce portions and evidence and question the witness on it.
If writing is used to refresh memory BEFORE testifying, the court has discretion and determines if it is necessary in the interest of justice.
Definition: where a witness has a failure of memory, the witness’ memory may be refreshed by showing the witness a document or other item which revives the witness’ memory. The witness may then testify from a refreshed or revived recollection.
Steps to take when there is a failure of recollection:
“Are you having trouble remembering about the event?”
Witness says “Yes”
“Is there anything that could refresh your memory?” (warn witness about this)
Witness says “Yes”
Mark document for identification. Ask to approach witness. “Directing your attention to what has been marked as exhibit one, please read to yourself what has been marked…” When witness is ready take document away. “Is your memory refreshed?”
Witness says “Yes”
“Can you please tell the jury…”
Opposing counsel enters it into evidence; other counsel just marks it as exhibit.
Non-Responsive Chapter 17 (pg. 30)
Rule 611(a): Mode and order of interrogation and presentation
Definition: an answer that exceeds the scope of the question or fails to respond to a question, may be the subject of a motion to strike as non-responsive by questioning counsel. The objection is available only to questioning counsel.
This is true in every jurisdiction except California where there is an objecting for “volunteering information.”
Different than narrative because narrative goes to the questioning and non-responsive goes to the answer.
Usually occurs on cross exam.
Asked and Answered Chapter 10 (pg. 18)
Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time
Definition: a question may be objected to as asked and answered when it calls for the repetition of testimony from a witness who has previously given the same testimony in response to a question asked by examining counsel. It is designed to prevent cumulative evidence by way or repetition of facts by witnesses.
Assuming Facts Not in Evidence Chapter 11 (pg. 20)
Rule 611 (a), (c) Rule 611: Mode and order of interrogation and presentation
Rule 602: Lack of Personal Knowledge
Definition: A question is objectionable if it assumes, in the asking, facts that have not already been proved. These questions are a form of leading questions.